Rhodes v. Wheeler — 48 A.D. 361

Majority

p. 361

John H. Rhodes and Joel S. Faulknor, Respondents, v. Joseph B. Wheeler and Harry Winfield, Appellants.

Headnote

Change of venue — stipulation that witnesses will swear to the facts alleged.

Upon an application for a change of venue for the convenience of witnesses, a stipulation by the opposing party that the witnesses will swear to the facts as alleged in the moving affidavit is not sufficient to defeat the motion.

The moving party is entitled to the benefit of their oral testimony upon the trial so that the court and jury may be better able to determine whether they are telling the truth or not.

An admission that witnesses will testify to certain facts i-s not an admission of the truth of the testimony or of the facts themselves.

p. 362

Appeal by the defendants, Joseph B. Wheeler and another, from an order of the Supreme Court, made at the St. Lawrence Special Term and entered in the office of the clerk of the county of Montgomery on the 25th day of November, 1899, denying the defendants’ motion to change the place of trial of the above-entitled action from the county of Montgomery to the county of Broome.

H. D. Hinman, for the appellants.

Henry M. Love, for the respondents.

The substantial and material acts alleged in the plaintiffs’ complaint were committed, if at all, in the city of Binghamton, Broome ■ county. The great majority of the witnesses upon the crucial points in the ease evidently reside in-the city of .Binghamton.

A stipulation that the witnesses will swear to the facts as alleged in the. affidavit of the moving party is not sufficient; the party is entitled to their presence upon the trial and to the benefit of. their oral testimony, so that the court and jury may be better able to determine whether they are telling the truth or not.

An admission that witnesses will testify to certain facts is not an admission of the truth of such testimony, nor an admission of the facts themselves. (Ingal v. Stoddard, 35 App. Div. 539 , 541.)

The order app'ealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs of motion, to abide the event of the action.

All' concurred.

Order reversed, with ten dollars costs and disbursements, and . motion granted, with' ten dollars costs of motion, to abide the event of the action.